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General Manager, M/s J.K. Sugar Ltd. Versus Commissioner of Central Excise, Meerut-II

2016 (4) TMI 153 - CESTAT ALLAHABAD

Eligibility for Cenvat credit of the service tax paid by the provider of service (GTA) - Service tax not deposited and the same have been paid by the GTA - Held that:- the words "in respect of such taxable service as may be notified", have been inserted in subsection 2 of Section 68 with effect from 1/7/2012 by the finance act 2012. Thus prior to 1/7/2012, under the provisions of section 68 (1), the tax already has been deposited by the GTA in the present case. Also Rule 2(1)(d)(v) of service ta .....

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r, invoice is a prescribed document under rule 9(1) (f) of Cenvat credit rules 2004 on which credit can be taken. Accordingly, the impugned order is set aside. - Decided in favour of appellant with consequential benefit - Appeal No. ST/591/2009 (SM) - Final Order No. A/70060/2016 - Dated:- 28-1-2016 - Anil Coudhary, Member (J) For the Appellant : Ms Pushpila Bisht, Adv For the Respondent : Shri S K Goswami, Addl. Commissioner (AR) ORDER Per Anil Choudhary The appellant is in appeal against order .....

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the inputs received in the factory and as the appellant had not deposited the service tax and the same have been paid by the GTA there has been violation of Rule 2(1)(d)(V) of service tax Rules read with provisions of Notification number 36/2004 - ST. It further appeared that Rule 9(1) (e) of Cenvat credit rules, 2004 provides that Cenvat credit shall be taken by the manufacturer on the basis of a Challan evidencing payment of service tax by the person liable to pay service tax under subclauses .....

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ntest and the demand proposed was confirmed. Further penalty was imposed under section 78 ₹ 1,29,316/-. Cenvat credit of ₹ 64,658/- were also disallowed and further penalty of ₹ 64,658/- was imposed under rule 15 of CCR read with section 11 AC of the Act. Being aggrieved the appellant had preferred appeal before the learned Commissioner (Appeals), who was pleased to reject the appeal observing that tax paid by the GTA is not the proper payment as required under rule (2) (1) (d) .....

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- GTA and the Revenue again demanded tax from manufacturer on contention that it was the liability of the manufacturer to pay the tax, was held not acceptable. It was further held that once tax is already paid on the services it was not open to the department to confirm the same against the manufacturer appellant in respect of the same service. The said ruling was followed by this Tribunal in 2014 (2) TMI 100 - CESTAT Mumbai, in the case of Umasons Auto Compo Private Ltd Vs. Commissioner of Cent .....

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er the scheme of the Act, it is prima facie liability of the provider of service to pay the service tax. Further the service tax was charged in invoices by the GTA and the GTA is registered with Service Tax Department and there is no dispute regarding the payment of service tax to the GTA by the appellant and deposit of such tax by the GTA, service tax cannot be demanded again from them and they are rightly entitled to take Cenvat credit. 4. The learnedly AR for revenue relies on the impugned or .....

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